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Santos v. A.C. McLoon Oil Co.

Superior Court of Rhode Island

July 30, 2015

NANCY SANTOS as Executrix of the Estate of JOHN JOSEPH SOUZA, Plaintiff,
A.C. MCLOON OIL CO., et al., Defendants.

Providence County Superior Court

For Plaintiff: John E. Deaton, Esq.

For Defendant: Andrew R. Ferguson, Esq.



The Defendants-Soo Locks Boat Tours (Soo Locks), Fire Island Ferries, Inc. (Fire Island), Lake Champlain Transportation Co. a/k/a Lake Champlain Ferries (LCT), Champion's Auto Ferry, Inc. (Champion), Fishers Island Ferry District (Fishers Island), and Casco Bay Lines a/k/a Casco Bay Island Transit District (CBITD)-move for summary judgment in the above-entitled case. Plaintiff objects to the motion. Jurisdiction is pursuant to G.L. 1956 § 8-2-14.

I Facts and Travel

The basic facts of this matter were previously recounted by this Court in its Decision of February 22, 2013, regarding Defendants' motions to dismiss for failure to state a claim and for lack of personal jurisdiction.[1] Accordingly, the Court will supplement the facts as necessary to decide the instant motion.

John Joseph Souza (Mr. Souza) worked at Blount Marine Corporation (Blount Marine or Blount Boat or Blount) in Warren, Rhode Island from approximately 1952 to 1993. Generally, Blount Marine built, maintained, and repaired passenger boats or ships. Defs.' Mot. for Sum. J., Ex. B (Pl.'s Exposure Chart). While at Blount Marine, Mr. Souza worked in various capacities, inter alia, as a carpenter, welder, finishing crane operator, and yard foreman. Id. In February of 2008, Mr. Souza was diagnosed with mesothelioma. Pl.'s Answer to Defs.' Interrog. ¶ 30. Mr. Souza died on March 16, 2008, at the age of 83. Id. at ¶ 2.

Each of the instant Defendants has set forth affidavits describing its relationship with Blount Marine. Hr'g Tr., 2:3-5, July 15, 2015. The affidavits, for the purposes of this motion, are factually identical.[2] To wit, the Defendants purchased large, commercial passenger vessels from Blount Marine. However, the Defendants' affidavits each state that they never: (1) provided instructions to Blount Marine regarding the means and methods of constructing the vessels, nor specified the use of any asbestos-containing materials;[3] (2) employed Mr. Souza;[4] or (3) produced or manufactured asbestos-containing products.[5]

II Parties' Arguments

Plaintiff filed an Amended Complaint against the respective Defendants asserting claims of (1) failure to warn; (2) negligence; (3) strict product liability; (4) breach of implied warranty and merchantability; and (5) wrongful death. Defendants allege that all of the Plaintiff's claims fail as a matter of law and thus summary judgment is appropriate. First, Defendants state that they owed no legally recognized duty to the Plaintiff or Mr. Sousa, and therefore, Plaintiff's failure to warn and negligence claims must fail.[6] Regarding the Plaintiff's claims of strict products liability and breach of implied warranty of merchantability, Defendants allege that as "buyers, " they fall outside the scope of liability. Finally, Defendants contend that because the negligence and failure to warn claims fail, Plaintiff's wrongful death claim also fails as a matter of law.

Plaintiff alleges that summary judgment is not appropriate because pertinent issues of fact remain. Specifically, Plaintiff states that although the Defendants' affidavits state that they "have no knowledge of supplying asbestos-containing products[, ]" such "conclusive statements" do not "eliminate an issue of fact[.]" Hr'g Tr. 7:11-16. For instance, Plaintiff points to documents "from Blount Boats" that state "owner supply builder to install[.]"[7] Id. at 8:7-10. In essence, Plaintiff contends that Defendants controlled the products that were used in the construction of the vessels that they purchased, and thus summary judgment is not appropriate.

III Standard of Review

"Summary judgment is 'a drastic remedy, ' and a motion for summary judgment should be dealt with cautiously." Estate of Giuliano v. Giuliano, 949 A.2d 386, 390-91 (R.I. 2008) (quoting Ardente v. Horan, 117 R.I. 254, 256-57, 366 A.2d 162, 164 (1976)). "The summary judgment papers filed by the movant must seek to establish that there exists no genuine dispute with respect to the material facts of the case. If the movant satisfies that requirement, the nonmovant must point to evidence showing that a genuine dispute of material fact does exist." Id. at 391. "The nonmovant must, by competent evidence, prove the existence of a disputed issue of material fact." Id. (citing Benaski v. Weinberg, 899 A.2d 499, 502 (R.I. 2006)). The nonmovant may not rely upon "mere allegations or denials in the pleadings, mere conclusions or mere legal opinions." Tanner v. Town Council of E. Greenwich, 880 A.2d 784, 791 (R.I. 2005) (internal ...

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